Child Relocation Law in Florida - Fla. Stat. 61.13001



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Relocation is an issue that is often addressed either in an initial custody action or after an initial custody order has been established. Florida Statute 61.13001 specifically addresses the issue of relocation. This statute prevents a residential parent from relocating their residence more than 50 miles unless the parties enter into a written agreement before the move or a court approves the relocation.

Restrictions on Relocation and Florida’s Relocation Statute

[a] No Relocation Without Agreement or Court Order. The relocation statute, Florida Statutes Section 61.13001, basically requires that persons designated in the statute obtain court permission to relocate, either by obtaining the court's ratification of an agreement or by obtaining a court order allowing relocation. The statute was amended in 2008 to reflect changes in statutory terminology that were enacted that year [see 2008 Fla. Laws, ch. 2008-61, § 9; see also § 32.03]. The statute was also amended in 2009 to simplify procedures for obtaining permission to relocate [see [d], below], and to expand the category of persons who must obtain permission to relocate. Under the 2009 amendments, any parent or nonparent who desires to relocate and who has court-ordered rights to maintain the child's residence or who has court-ordered rights of timesharing with, or access to, the child, must enter into an agreement or obtain a court order allowing the relocation [see Fla. Stat. § 61.13001(1)(c)-(e), (3)]. Previously, only parents and nonparents with whom children resided were required to obtain agreements or court orders allowing them to relocate [see 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(1) (amendments included deletion of Florida Statutes Section 61.13001(1)(a), which defined "change of residence address" as change in child's address)].

It should be noted that a summary of amendments at the beginning of the pertinent 2009 chaptered law explains that the term "access to" in the relocation statute is a substitute for the term "visitation" [see 2009 Fla. Laws, ch. 2009-180].

A parent or nonparent who would otherwise be required to obtain permission to relocate because he or she has court-ordered rights to spend time with the child is not required to obtain permission if he or she is moving his or her principal residence to a place less than 50 miles from the principal residence address he or she had when the pending action was filed or the last order or judgment establishing timesharing was rendered. In contrast, a parent or nonparent who has court-ordered rights to spend time with the child and who desires to relocate to a principal residence address that is 50 miles or more from his or her previously declared principal residence address must obtain permission to relocate [see Fla. Stat. § 61.13001(1)(e), (3); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(1), (3)]. Procedurally, a parent or nonparent who is required to obtain permission to relocate must obtain one of the following [see Fla. Stat. § 61.13001(2)(a), (3)]:

A written agreement to the relocation, entered into by the other parent and all other persons entitled to timesharing with, or access to, the child, and court ratification of the agreement [see Fla. Fam. L. R. P. Form 12.950(a), § 32.220].

An ex parte court order that allows relocation based on a lack of timely response by the other parent or any other person who (1) is entitled to timesharing with, or access to, the child; and (2) has been served with a petition to relocate [see Fla. Fam. L. R. P. Form 12.950(a), § 32.220].

A court order that allows relocation following a noticed evidentiary hearing [see Fla. Fam. L. R. P. Form 12.950(i), § 32.228].

The relocation statute applies to temporary and permanent orders that were or are entered on or after October 1, 2009 and that address parenting plans, custody, primary residence, timesharing with, or access to the child [see Fla. Stat. § 61.13001(11)(a)2.]. In addition, the statute applies to any temporary or permanent relocation or proposed relocation as to which an issue arises in a proceeding that (1) was pending on October 1, 2009; and (2) concerns a parenting plan, custody, primary residence, timesharing with, or access to the child [see Fla. Stat. § 61.13001(11)(a)3.]. Finally, the relocation statute applies to orders that were entered before October 1, 2009 if the existing order does not expressly govern relocation of the child [see Fla. Stat. § 61.13001(11)(a)1.]. If an order existing on October 1, 2009 conflicts with the 2009 relocation statute, the statute does not apply to the extent the existing order expressly governs relocation of the child or a change in the principal address of a parent or other person [Fla. Stat. § 61.13001(11)(b)); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(11)].

[b] Definitions of Terms. In actions to which the 2009 relocation statute is applicable [see [a], above], the following definitions apply [see Fla. Stat. § 61.13001(1); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(1)]:

"Child" means any person who is under the jurisdiction of a state court pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), or who is the subject of any order granting to a parent or other person any right to timesharing, residential care, kinship, or custody as provided under state law [see Fla. Stat. § 61.13001(1)(a)].

"Court" means (1) the circuit court in an original proceeding that has proper venue and jurisdiction in accordance with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), (2) the circuit court in the county in which either parent and the child reside, or (3) the circuit court in which the original action was adjudicated [see Fla. Stat. § 61.13001(1)(b)].

"Other person" means an individual (1) with whom the child resides pursuant to court order, but who is not the parent of the child; (2) who has timesharing rights with the child; or (3) who has rights of access to the child [see Fla. Stat. § 61.13001(1)(c)].

"Parent" means (1) any person named as the child's parent by court order or by express written agreement that is subject to court enforcement, or (2) a person reflected as the child's parent on a birth certificate and who is entitled to timesharing with or access to the child [see Fla. Stat. § 61.13001(1)(d)].

"Relocation" means a change in the location of the principal residence of a parent or other person as it was at the time of the last order establishing or modifying timesharing, or at the time of filing the pending action to establish or modify timesharing. The change of location must be at least 50 miles from that residence, and must be for at least 60 consecutive days, not including a temporary absence from the principal residence for purposes of vacation, education, or the provision of health care for the child [see Fla. Stat. § 61.13001(1)(e)].

According to a summary of amendments at the beginning of the 2009 chaptered law that contains the revised relocation statute, the term "access to [the child]" is a substitute for the term "visitation with [the child]" [see 2009 Fla. Laws, ch. 2009-180; see also [a], above]. The statute itself does not define "access to" the child.
[c] Requirements of Agreement. Pursuant to the relocation statute as it was amended in 2009 [see [a], above], an agreement that allows relocation by a parent or other person [see [b], above (definitions)] must be in writing and must be signed by the child's parent or parents and all other persons who are entitled to timesharing with, or access to, the child. [see Fla. Stat. § 61.13001(2)(a)]. The relocation statute does not expressly state that nonparents with whom a child resides pursuant to court order must also agree to relocation by a parent or other person, but logically, such nonparents are included in that group [see Fla. Stat. § 61.13001(1)(c) (definition of "other person")].

An agreement must (1) reflect the consent of all the signators to the relocation; (2) define a timesharing or access schedule for the non relocating parent and each other person who is entitled to timesharing with, or access to, the child; and (3) describe, if necessary, any transportation arrangements related to the timesharing or access schedule [see Fla. Stat. § 61.13001(2)(a)1.-3.].

A written agreement allowing relocation must be ratified by the court [see Fla. Stat. § 61.13001(2)(b)]. No hearing is necessary unless a party to the agreement requests one in writing within 10 days after the date on which the agreement is filed with the court. If a hearing is not timely requested, the court must presume that the relocation is in the best interests of the child and may ratify the agreement without an evidentiary hearing [see Fla. Stat. § 61.13001(2)(b)].

The Florida Supreme Court has approved a form for a written agreement allowing relocation [see Fla. Fam. L. R. P. 12.950a; § 32.220].

[d] Obtaining Court Order
[i] Petition to Relocate

[A] Contents of Petition. If a parent or other person [see [b], above (definitions)] who desires to relocate fails to obtain an agreement to the relocation from the other parent and any other person who is entitled to timesharing with, or access to, the child [see [a], [c], above], the parent or other person who wants to relocate must file a petition to relocate with the court and serve it on the other parent and any other person who is entitled to timesharing with, or access to, the child [see Fla. Stat. § 61.13001(3); see also Fla. Fam. L. R. P. Form 12.950(c), 12.950(d); §§ 32.222, 32.223]. The petition must be signed under oath or affirmation, under penalty of perjury, and must contain the following information [see Fla. Stat. § 61.13001(3)(a); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(3)]:

The location of the intended new residence, including the state, city, and specific physical address, if known [see § 61.13001(3)(a)1., Fla. Stat.].
The mailing address of the intended new residence, although this may be omitted if it is the same as the known physical address [see § 61.13001(3)(a)2., Fla. Stat.].
The home telephone number of the intended new residence, if that number is known [see § 61.13001(3)(a)3., Fla. Stat.].
The date of the intended move or proposed relocation [see § 61.13001(3)(a)4., Fla. Stat.].
A detailed statement of the specific reasons for the proposed relocation, and if one of the reasons is a job offer that has been reduced to writing, the written job offer must be attached to the petition [see § 61.13001(3)(a)5., Fla. Stat.].
A proposed timesharing or access schedule and proposed transportation arrangements that are necessary to effectuate the schedule [see § 61.13001(3)(a)6., Fla. Stat.].

Substantially the following statement, in all capital letters and in the same size type, or larger, as the type in the remainder of the petition [see § 61.13001(3)(a)7., Fla. Stat.]: A RESPONSE TO THE PETITION, OBJECTING TO RELOCATION, MUST BE MADE IN WRITING, FILED WITH THE COURT, AND SERVED ON THE PARENT OR OTHER PERSON SEEKING TO RELOCATE WITHIN 20 DAYS AFTER SERVICE OF THIS PETITION TO RELOCATE. IF YOU FAIL TO TIMELY OBJECT TO THE RELOCATION, THE RELOCATION WILL BE ALLOWED, UNLESS IT IS NOT IN THE BEST INTERESTS OF THE CHILD, WITHOUT FURTHER NOTICE AND WITHOUT A HEARING.

A failure to include in the petition the sixth item listed above a proposed timesharing or access schedule and a proposal for transportation to effectuate the schedule--can have significant adverse consequences. Specifically, failure to include that information renders the petition "legally insufficient" unless (1) a valid order abating, terminating, or restricting timesharing or access exists; or (2) other good cause exists that predates the petition [see § 61.13001(3)(a)6., Fla. Stat.].

If the parent or other person who is seeking to relocate, or the child, is entitled to prevent public disclosure of location information under a public records exemption, the trial court may enter any order necessary to modify the disclosure requirements of the relocation statute, so as to comply with the public records exemption [see Fla. Stat. § 61.13001(4)].

A parent or other person who is seeking to relocate has a continuing duty to update and serve the information provided in the petition when the updated information becomes known to the petitioner [see Fla. Stat. § 61.13001(3)(c)].

The Florida Supreme Court has approved a form for a petition for dissolution of marriage, which includes a request to relocate [Fla. Fam. L. R. P.12.950(c); see § 32.222], as well as supplemental petition for relocation to be used after a final judgment of dissolution or paternity has been entered [Fla. Fam. L. R. P.12.950(d); see § 32.223].

[B] Filing and Service of Petition. A parent or other person who has prepared a petition to relocate [see [A], above] must serve the petition on the other parent and any other person who is entitled to timesharing with, or access to, the child [see Fla. Stat. § 61.13001(3)(b)].

If there is a pending court action regarding the child, service of process may be effected according to court rule. Otherwise, service of process must be performed according to Florida Statutes Chapters 48 and 49, or via certified mail, restricted delivery, return receipt requested [Fla. Stat. § 61.13001(3)(b)].

A parent or other person who serves a petition to relocate has a continuing duty to serve updated information when the updated information becomes known to him or her [Fla. Stat. § 61.13001(3)(c)].

[ii] Objections to Relocation. If a parent or other person who desires to relocate with a child serves a petition to relocate on a parent or other person who is entitled to timesharing with, or access to, the child [see [i], above], and the person who is served desires to object to the relocation, he or she must serve a verified answer objecting to the proposed relocation within 20 days after service of the petition. The written objection must include the specific factual basis supporting the objection, and must include a statement of the amount of participation or involvement the objecting party currently has, or has had, in the life of the child [see Fla. Stat. § 61.13001(3)(a)7, (5); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(3), (5)].

If a parent or other person who is served with a petition to relocate fails to object, or objects in an untimely manner and fails to show good cause for the untimely objection, the court must presume that the relocation is in the child's best interests and that the relocation should be allowed [see Fla. Stat. § 61.13001(3)(d)]. Accordingly, the court must enter an order (1) allowing the relocation, (2) specifying that the order is being entered as a result of the untimely response or failure to respond to the petition, and (3) adopting the timesharing or access schedule and transportation arrangements set forth in the petition. The order may be issued in an expedited manner without an evidentiary hearing [see Fla. Stat. § 61.13001(3)(d)].

If a proposed relocation is uncontested, the parent or other person who is proposing the relocation will not be charged a fee for filing the petition to relocate or for the court's issuance of an order [see Fla. Stat. § 28.241(1)(b)].

If a parent or other person who is served with a petition to relocate files a timely response in which he or she objects to the relocation, the parent or other person who is proposing the relocation may not relocate, and must proceed to a temporary hearing or trial and obtain the court's permission to relocate prior to relocating [see Fla. Stat. § 61.13001(3)(d)].

[iii] Priority of Contested Relocation Hearing. An evidentiary hearing or trial on a request for a temporary or permanent order allowing relocation must be accorded priority on the court's calendar. If a motion seeking temporary relocation is filed, a hearing must be held no later than 30 days after the motion is filed unless good cause exists for scheduling a later hearing. If a notice to set the matter for non-jury trial is filed, the trial must be held no later than 90 days after the notice is filed, unless good cause justifies a later trial date [see Fla. Stat. § 61.13001(10); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(10)].

[iv] No Presumption For or Against Temporary or Permanent Relocation. Like its predecessors, the 2009 relocation statute prohibits the court from applying a presumption for or against a request to relocate, even if the relocation will materially affect a parent or other person's existing schedule of contact, access, or timesharing [see Fla. Stat. § 61.13001(7); see also 2009 Fla. Laws, ch. 2009-180, § 4; 2008 Fla. Laws, ch. 2008-61, § 9; 2006 Fla. Laws, ch. 2006-245, § 2; 1997 Fla. Laws, ch. 97-242, § 1]. In making a decision as to whether to allow relocation, the trial court must consider statutory factors set forth in the relocation statute [see Fla. Stat. § 61.13001(7); see also [v], below].
Finally, like the 2006 and 2008 versions of the relocation statute, the 2009 version expressly states that the burden of proof is on the parent or other person requesting relocation to establish by a preponderance of the evidence that relocation is in the best interests of the child [see Fla. Stat. § 61.13001(8); see also [vi], below].

[v] Factors Applicable to Determining Temporary or Permanent Relocation Issue. There is a relatively detailed list of factors that a trial court must consider in determining whether to permit a temporary or permanent relocation. The factors are as follows [see Fla. Stat. § 61.13001(7)(a)-(k); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(7)(a)-(k)]:

The nature, quality, extent of involvement, and duration of the child's relationship with (1) the parent or other person who is proposing the relocation; (2) the child's other parent or the child's parents who is or are not relocating; (3) any nonparent ("other person") who is entitled to timesharing with, or access to, the child and who is not relocating; (4) any nonparent with whom the child resides pursuant to court order, and who is not relocating; (5) the child's siblings and half-siblings; and (6) any other significant persons in the child's life [see Fla. Stat. § 61.13001(7)(a); see also [a]-[b], above (applicability of relocation statute to "parent" and "other person," and definitions of those terms)].

The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, including consideration of any special needs of the child [see Fla. Stat. § 61.13001(7)(b)].

The quality and practicality of the proposed substitute contact between the child and the non relocating parent, parents, or nonparents, considering specifically (1) the feasibility of preserving the relationship between the child and the non relocating parent, parents, or nonparents through substitute arrangements that account for the logistics of contact, access, and timesharing, as well as the financial circumstances of the parties; (2) whether the substitute arrangements are sufficient to foster a continuing, meaningful relationship between the child and the non relocating parent, parents, or nonparents; and (3) the likelihood of compliance with the substitute arrangements by the parent or other person who is proposing to relocate after he or she is out of the court's jurisdiction [see Fla. Stat. § 61.13001(7)(c); see also Fla. Stat. § 61.13001(9)(a); [f], below (specification of modes of contact between child and non relocating parent or non relocating other person in order granting relocation)].

The child's preference, considering the age and maturity of the child [see Fla. Stat. § 61.13001(7)(d)].
Whether the relocation will enhance the general quality of life for the parent or other person who is proposing to relocate and the child, including, but not limited to, whether the relocation will enhance the financial circumstances, emotional circumstances, or educational opportunities of the parent or other person and the child [see Fla. Stat. § 61.13001(7)(e)].

The reasons underlying the request for relocation by the petitioner-parent or other person who is seeking relocation, and the reasons that each opposing parent or other person has for objecting to the relocation [see Fla. Stat. § 61.13001(7)(f)].

(1) The current employment and economic circumstances of the parent or other person who is proposing to relocate, as well as the current employment and economic circumstances of the child's parent or parents who are not relocating, and any other person who is entitled to timesharing with, or access to, the child and who is not relocating; and (2) whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person who is proposing to relocate [see Fla. Stat. § 61.13001(7)(g)].

Whether the parent or other person who is seeking the relocation is doing so in good faith, and the extent to which an objecting parent has fulfilled his or her financial obligations--including child support, spousal support, and marital property and marital debt obligations--to the parent or other person who is seeking relocation [see Fla. Stat. § 61.13001(7)(h)].

The career and other opportunities available to the objecting parent or other person if the relocation is allowed [see Fla. Stat. § 61.13001(7)(i)].

Any history of substance abuse or domestic violence as defined in Florida Statutes Section 741.28 or Florida Statutes Section 39.806(1)(d), by either parent, including the severity of such conduct and the failure or success of any attempts at rehabilitation [see Fla. Stat. § 61.13001(7)(j)].

Any other factor affecting the child's best interests, or any factor set forth in Florida Statutes Section 61.13 [see Fla. Stat. § 61.13001(7)(k)].

The statutory relocation factors set forth in the 2008 and 2009 versions of the relocation statute are nearly identical to the factors set forth in the 2006 version of the statute, and are similar to some of the factors set forth in the 1997 version of the statute [see 2006 Fla. Laws, ch. 2006-245, § 2; 1997 Fla. Laws, ch. 97-242, § 1]. There are not many district court opinions that applied the previous relocation factors. However, several such appellate opinions do exist. Of those, two held that allowing relocation was improper [see Paskiewicz v. Paskiewicz, 967 So. 2d 277 (Fla. 3d DCA 2007) ; Muller v. Muller, 964 So. 2d 732 (Fla. 3d DCA 2007) ]. Another court held that allowing relocation was proper [see Norris v. Heckerman, 972 So. 2d 1098 (Fla. 1st DCA 2008) ].
In Muller v. Muller [964 So. 2d 732 (Fla. 3d DCA 2007) ], the Third District Court of Appeal reversed a trial court's decision to allow relocation by a custodial mother to Colorado. The Third District (1) identified specific facts relied on by the trial court that did not satisfy the statutory factors to which they were related by the lower court, and (2) held there was no substantial, competent evidence to support the trial court's decision [see Muller v. Muller, 964 So. 2d 732 (Fla. 3d DCA 2007) ]. The district court explained the evidentiary deficiency with regard to each statutory factor as follows [see Muller v. Muller, 964 So. 2d 732 (Fla. 3d DCA 2007) ]:

With regard to the first factor, which requires a trial court to consider "[t]he nature, quality, extent of involvement, and duration of the child's relationship" with each party and with other persons in the child's life [see § 61.13001(7)(a), Fla. Stat.], the trial court had found that the mother was more involved in caring for the child as an infant and the father had assumed a greater role when the child was a little older. In addition, the lower court observed that the maternal grandparents in Colorado were not employed and the paternal grandparents in Florida were employed. The Third District held that these facts by themselves did not support a finding that the proposed relocation would improve the nature, quality, extent of involvement, and duration of the child's relationship with either party or with other persons in the child's life.

Regarding the second statutory relocation factor, which mandates consideration of the child's needs and the impact of relocation on the child [see § 61.13001(7)(b), Fla. Stat.], the Third District in Muller related that the trial court had focused almost exclusively on the fact that the child would be cared for by the maternal grandmother in Colorado instead of receiving day-care services in Florida. This fact was insufficient to support relocation under the second factor, the appeals court indicated, because the trial court had not considered the very young age of the child or any other impact the relocation would have on the child's physical, educational, and emotional development.

In the Third District's view in Muller, the third statutory factor, which requires determination of the practicality and quality of substitute contact between the child and the noncustodial parent or other person, was not satisfied by the lower court's conclusory finding that it would be feasible to foster a meaningful relationship between the father and child after the relocation. To the contrary, the appeals court stated, the record clearly showed the hardships and complications of traveling between Florida and the town to which the mother wanted to move--Grand Junction, Colorado. To exercise visitation in Grand Junction, the father would have to travel four hours by air to Denver, which he could not easily afford given his monthly net income of approximately $1,300. Moreover, the record showed that travel to Grand Junction from Denver entailed a four-hour drive. In sum, to have any direct contact with the child the father would be required to take off several days, if not weeks, from work [see Segarra v. Segarra, 947 So. 2d 543, 546 (Fla. 3d DCA 2006) ].

The Muller court held that the trial court had properly found the fourth relocation factor, the child's preference, to be inapplicable because the child was two years old.

The trial court in Muller had considered the fifth, sixth, and seventh factors in combination [see § 61.13001(7)(e) (whether relocation will enhance parent's and child's general quality of life, including whether relocation will enhance financial or emotional circumstances or educational opportunities of both of them, (f) (parent's reasons for seeking to relocate), (g) (current employment and economic circumstances of parent who desires to relocate, child's other parent, and any other person who is entitled to timesharing with the child, and whether proposed relocation is necessary to improve economic circumstances of parent who desires to relocate), Fla. Stat.]. The trial court had found that the proposed relocation would enhance the general quality of life for both the mother and the child because the mother would no longer have to work as a store clerk, would spend more time with the child, and would be attending nursing school. However, according to the Third District, the record revealed that the mother did not have any job offer in Colorado and had not applied to any nursing school in Grand Junction.

Moreover, during the time the mother had lived in Colorado with the child, the mother had lost her job. Further, there was no evidence that the mother would earn a higher income, work fewer hours, or be in a better position to spend more time with the child. Thus, the trial court had relied on the mother's hopes and expectations without requiring proof of either employment prospects or educational enrollment to support its findings under the fifth, sixth, and seventh statutory factors [see Cecemski v. Cecemski, 954 So. 2d 1227, 1229 (Fla. 2d DCA 2007) (because mother testified that she had not applied for any jobs in Louisiana, evidence did not support trial court's finding that quality of life for mother and child would improve there)]; Segarra v. Segarra, [947 So. 2d 543, 546 (Fla. 3d DCA 2006) (evidence that custodial mother did not have job offer in Bryceville, Florida supported trial court's denial of relocation)]; Botterbusch Botterbusch, 851 So. 2d 903, 904 (Fla. 4th DCA 2003) (evidence supported trial court's finding that quality of life for mother and child would improve because record reflected that mother had accepted job offer with United States Customs Department and would earn more money and work fewer hours in her new position)].

After Muller, the Third District again addressed the relocation statute in Paskiewicz v. Paskiewicz [967 So. 2d 277 (Fla. 3d DCA 2007) ]. In Paskiewicz, the Third District reversed a trial court's approval of a mother's request for modification of rotating custody so she could have primary residential custody of the parties' children in Virginia. The court based its decision on the custodial mother's failure to show a substantial change in circumstances, and cited its prior decision in Bazan v. Gambone [924 So. 2d 952 (Fla. 3d DCA 2006) ] to support the holding.

Specifically, the district court agreed with the father that the mother's desire to move for financial reasons was not by itself a substantial change in circumstances that warranted a change in the existing custodial arrangement [see Bazan v. Gambone, 924 So. 2d 952 (Fla. 3d DCA 2006) ]. However, citing Section 61.13001(7), the Third District further remarked that if the original custody arrangement had not been a rotating custody arrangement, the mother's reasons for wanting to move might have been sufficient to justify relocation [see Paskiewicz v. Paskiewicz, 967 So. 2d 277 (Fla. 3d DCA 2007) ; see also [iv], below (discussion about uncertainty regarding requirements for postjudgment order allowing relocation)].

Finally, in Norris v. Heckerman [972 So. 2d 1098 (Fla. 1st DCA 2008)] , the First District Court of Appeal approved a trial court's decision to allow a custodial wife to relocate to Illinois with the parties' children pursuant to the factors enumerated in Section 61.13001(7). Although the trial court had not made "certain critical findings regarding several of the statutory factors," according to the district court, the omission was the result of the parties' failure to present evidence concerning those factors. Therefore, based on the limited evidence before the trial court, the First District held that the lower court had properly exercised its discretion in granting the mother's request to relocate [see Norris v. Heckerman, 972 So. 2d 1098 (Fla. 1st DCA 2008) ].

Under the 2006 and 1997 versions of the relocation statute [see 2006 Fla. Laws, ch. 2006-245, § 2; 1997 Fla. Laws, ch. 97-242], as well as under the 2009 and 2008 versions [see 2009 Fla. Laws, ch. 2009-180, § 4; 2008 Fla. Laws, ch. 2008-61, § 9], a trial court deciding whether to allow relocation must consider whether proposed substitute contact between the child and the objecting parent or other person will be adequate "to foster a continuing meaningful relationship" between the child and the non relocating parent or other person [see Fla. Stat. § 61.13001(7)(c)]. A conflict that existed under the prior statutes and that remains under the 2009 statute is what constitutes a continuing, meaningful relationship. One appeals court interpreting the 1997 statute held that a continuing, meaningful relationship was to be determined on its own merits, apart from the existing schedule of visitation [see, e.g., Fredman v. Fredman, 917 So. 2d 1038, 1041 (Fla. 2d DCA 2006) ]. In contrast, another appeals court indicated that a court must consider whether substitute visitation would allow the same quantity and quality of visitation as the existing schedule [see Shafer v. Shafer, 898 So. 2d 1053, 1057-1058 (Fla. 4th DCA 2005) ]. Because the meaning of "continuing, meaningful relationship" remains undefined in the 2009 statute [see Fla. Stat. § 61.13001(7)(c)], the conflict in the cases seemingly remains relevant.

Florida Statutes Section 61.13003 provides that a trial court's determination as to whether to allow a custodial parent to relocate with the parties' child should not be based solely on the availability or lack of availability of electronic communication as a means of contact between the noncustodial parent and the child [see § 61.13003(6), Fla. Stat.; see also [10], below (discussion of electronic communications statute)].

A trial court may grant a proposed relocation only if it is in the child's best interests at the time of the final hearing. This "present-based" analysis involves examining the statutory relocation factors as they relate to the child's and the parties' circumstances at the time of the hearing [ Arthur v. Arthur, 35 Fla. L. Weekly S 38,54So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010)] . Thus, a trial court may not properly grant a relocation that will be delayed for an extended time, because the child's and parties' circumstances quite possibly will change and the child's best interests may not be served by relocation at that time [see Arthur v. Arthur, 35 Fla. L. Weekly S 38, 54So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010) (trial court erred in granting relocation that was to occur 20 months later, because any of the statutory relocation factors could change "within the extended time period given by the court before relocation")]. Instead, a trial court's decision whether to allow such a relocation must be determined in postjudgment modification proceedings. At the time of those proceedings, the statutory relocation factors must be considered in relation to the then-current circumstances of the child and the parties, and the parent who desires to relocate bears the burden of proving that relocation would be in the child's best interests as of the time of the modification hearing [ Arthur v. Arthur, 35 Fla. L. Weekly S 38, 54 So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010) ; see also [vi], below (burden of proof); ch. 81, Modification of Parental Responsibility and Timesharing].

[vi] Burden of Proof at Temporary or Permanent Hearing. If a response containing an objection to relocation is filed, the parent or other person who is seeking to relocate may not relocate, and must proceed to a temporary hearing or trial and obtain the court's permission to relocate [see Fla. Stat. § 61.13001(3)(e); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(3)]. There is no presumption for or against relocation [see Fla. Stat. § 61.13001(7); see also [iv], above], but the parent or other person who is seeking to relocate has the burden to prove by a preponderance of the evidence that relocation is in the best interests of the child. If the parent or other person satisfies that burden of proof, the burden then shifts to the parent or nonparent who has objected to show by a preponderance of the evidence that the proposed relocation is not in the child's best interests [see Fla. Stat. § 61.13001(8); see also 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001(8)].

The 2009 relocation statute amendments did not clarify the standard for modification to allow relocation [see 2009 Fla. Laws, ch. 2009-180, § 4, amending Fla. Stat. § 61.13001]. However, other 2009 parenting legislation mandates that a petitioner for modification of a parenting plan or timesharing schedule show a substantial, material, and unanticipated change of circumstances [see 2009 Fla. Laws, ch. 2009-180, § 3, amending Fla. Stat. § 61.13(2)(c)]. In addition, the petitioner must establish that modification would be in the child's best interests [see 2009 Fla. Laws, ch. 2009-180, § 3, amending Fla. Stat. § 61.13(3)].

An appeals court that addressed modification under a pre-2009 version of the relocation statute held that a substantial change in circumstances must be shown to obtain modification of a rotating custody arrangement to allow relocation [see Paskiewicz v. Paskiewicz, 967 So. 2d 277 (Fla. 3d DCA 2007) ].

If a trial court grants a future relocation based on present circumstances, the court improperly shifts the burden of proof from the relocating party to the non relocating party, who will be required to show a substantial change in circumstances in later modification proceedings [ Arthur v. Arthur, 35 Fla. L. Weekly S 38, 54 So. 3d 454, 2010 Fla. LEXIS 41 (Fla. Jan. 14, 2010) ; see also ch. 81, Modification of Parental Responsibility and Timesharing].

[e] Temporary Orders

[i] Temporary Order Restraining Relocation or Ordering Return of Child. Under the relocation statute, a trial court may grant a temporary order restraining relocation of the child or ordering return of the child if the court finds that any of the following circumstances exist [see Fla. Stat. § 61.13001(6)(a); 2009 Fla. Laws, ch. 2009-180, § 4; see also Fla. Fam. L. R. P. Form 12.950(f); § 32.225]:

The required petition to relocate did not comply with statutory requirements pertaining to contents or execution, or was not served in a timely manner [see § 61.13001(6)(a)1., Fla. Stat.; see also [d][i], above (discussing contents, execution, and service of petition to relocate)].

The child has been relocated without written agreement by the required persons or without the court's approval [see § 61.13001(6)(a)2., Fla. Stat.; see also [a], above (discussing requirement of agreement or court order)].
The evidence presented at the preliminary hearing makes it appear likely that on final hearing, the court will not approve the relocation [see § 61.13001(6)(a)3., Fla. Stat.].

Instead of a temporary order restraining or ordering return of the child, the trial court may order other appropriate relief [Fla. Stat. § 61.13001(6)(a)].

[ii] Temporary Order Permitting Relocation. The court may grant a temporary order permitting relocation pending final hearing if the court finds that both of the following circumstances exist [see Fla. Stat. § 61.13001(6)(b); see also 2009 Fla. Laws, ch. 2009-180, § 4; see also Fla. Fam. L. R. P. Form 12.950(f); § 32.225]:

The petition to relocate was properly filed and otherwise complied with the statutory requirements pertaining to contents, execution, and service [see § 61.13001(6)(b)1., Fla. Stat.; see also [d][i], above (discussing contents, execution, and service of petition to relocate)].

The evidence presented at the preliminary hearing makes it appear likely that on final hearing, the court will approve the relocation, and this finding is supported by the same factual basis as would be necessary to support allowing relocation in a final judgment [see § 61.13001(6)(b)2., Fla. Stat.].

If the court issues a temporary order authorizing a parent or other person to relocate with the child before a final judgment is rendered, the court may not give any weight to the temporary relocation as a factor in reaching its final decision concerning the relocation [Fla. Stat. § 61.13001(6)(c)]. In Wraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011) , the Fifth District Court of Appeal considered a permanent order in which the trial court granted a mother's request to relocate with the parties' child to the United Kingdom. The trial court had earlier granted the mother permission to temporarily relocate to the United Kingdom with the child, and the mother had done so. The order permitting permanent relocation contained a number of findings that described the child's good academic performance and family contacts in the United Kingdom; the order also contained two express findings that another relocation would not be in the child's best interests. Nonetheless, the Fifth District held that there was no violation of Section 61.13001(6)(c)'s ban on including temporary relocation as a factor in deciding permanent relocation [see Wraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011) ].

The Fifth District in Wraight also discussed the lack of authority regarding Section 61.13001(6)(c), noting that there is neither case law that interprets Section 61.13001(6)(c) nor legislative history that explains it. Further, the district court described as "odd[]" the fact that the relocation statute requires a trial court to weigh the same factors in making a temporary decision as the court must weigh in making a permanent relocation decision [see Fla. Stat. § 61.13001(6)(b) (erroneously cited-to by district court as Fla. Stat. § 61.13001(6)(c)); see also Fla. Stat. § 61.13001(7) (relocation factors)]. The Fifth District speculated that perhaps Section 61.13001(6)(c)'s prohibition against considering any temporary relocation in deciding whether to allow permanent relocation is designed to assure that the facts and issues pertinent to a final relocation decision "will be fully examined de novo at the final hearing." The district court also speculated that Section 61.13001(6)(c) may be designed to temper unfairness that can be perceived by an objecting parent if the custodial parent has been allowed to temporarily relocate with the child and then use evidence of the relocation's success to gain an advantage over the objecting parent relocation [see Wraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011) ].

In addition, if temporary relocation of the child is permitted, the court may require the person relocating the child to provide reasonable security, financial or otherwise, and guarantee that court-ordered contact with the child will not be interrupted or interfered with by the relocating parent or other person [Fla. Stat. § 61.13001(6)(d)].

[f] Specification of Contact and Transportation Methods in Order Allowing Temporary or Permanent Relocation. Under the 2009 relocation statute, a trial court that grants a temporary or permanent request to relocate may designate methods of contact between the child and a non relocating parent or other person [see Fla. Stat. § 61.13001(9)(a); see also 2009 Fla. Laws, ch. 2009-180, § 4]. More specifically, the court may order contact through access, timesharing, telephone, the Internet, web-cam, and other arrangements that are (1) in the child's best interests, (2) financially affordable by the parties, and (3) sufficient to ensure that the child has frequent, continuing, and meaningful contact with the non relocating parent or other person [see Fla. Stat. § 61.13001(9)(a); see also Fla. Stat. § 61.13001(7)(c); [d][v], above (feasibility of preserving relationships between child and non relocating parent or other person as consideration in deciding whether to allow relocation)].

If appropriate, the trial court must specify how the transportation costs will be allocated between the parents and other persons who are entitled to contact, access, or timesharing. The court may also adjust child support after considering the costs of transportation, the respective net incomes of the child's parents, and the child support guidelines statute [Fla. Stat. § 61.13001(9)(b); see also Ch. 33, Child Support].

[g] Consequences of Failure to Serve Petition to Relocate. If a parent or other person relocates without complying with the statutory provisions regarding service of a petition to relocate [see [d][i], above], he or she is subject to contempt and other proceedings to compel the return of the child [Fla. Stat. § 61.13001(3)(e); see 2009 Fla. Laws, ch. 2009-180, § 4; see also Fla. Fam. L. R. P. Forms 12.950(g), 12.950(h); §§ 32.226, 32.227].

In addition, the failure to comply may be considered by the court in any initial or postjudgment action in which a petitioner seeks a determination or modification of a parenting plan or modification of a timesharing schedule or access schedule. More specifically, the court may consider the failure to comply with the statutory petition and service requirements as any of the following [see Fla. Stat. § 61.13001(3)(e)]:

A factor in determining whether to allow relocation of the child [see § 61.13001(3)(e)1., Fla. Stat.].
A factor in determining whether the parenting plan or timesharing or access schedule should be modified [see § 61.13001(3)(e)2., Fla. Stat.].

A basis for ordering the temporary or permanent return of the child [see § 61.13001(3)(e)3., Fla. Stat.]. Sufficient cause to order the parent or other person who is seeking to relocate to pay reasonable expenses and attorneys' fees incurred by the party objecting to the relocation [see § 61.13001(3)(e)4., Fla. Stat.].

Sufficient cause to order the parent or other person who is seeking to relocate to pay reasonable attorneys' fees and costs, including interim travel expenses, that are incidental to the objecting party's visitation or securing return of the child [see § 61.13001(3)(e)5., Fla. Stat.].

ABOUT THE AUTHOR: Joseph L. Gufford, III
Joseph Gufford, III, is a partner at Gufford & Brandt, in Stuart Florida. Mr. Gufford graduated from Stetson University College of Law in St. Petersburg in 1990 where he actively participated in trial team competition as well as the Stetson Negotiation Team. He has been a member of the Florida Bar since 1991. He is also a graduate of the University of Florida , having earned his undergraduate degree in Political Science. Mr. Gufford's practice is primarily devoted to family law although he also has extensive civil litigation and appellate experience. He has also served as the 2008 Chairman of the Martin County Bar Association Family Law Committee and has given professional lectures in the area in the area of family law. Mr. Gufford is a former member of the Board of Directors of Florida Rural Legal Services and the Florida Equal Justice Commission.

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